March 22, 2012

The Bizzaro World of Originalism and the Rise of the Constitutional Echo Chamber

Mike Rappaport’s paraphrase of “Physician Heal Thyself” is richly ironic. In his most recent post at the Liberty Law Blog Mike makes the following astonishing claim:

While we have argued the Constitution should be interpreted in accordance with original methods, we have not argued what those methods were. We believe that this would involve an in depth and balanced inquiry into the historical materials that we have not engaged in. We do, however, believe that the leading methods at the time were all some version of originalism – original intent, original public meaning, etc

Speaking of physicians, let us pause for a moment and consider what would happen to a professor of medicine who boasted that he and a coauthor had decided to follow Rappaport’s model:

We have argued for a particular theory, but we have not specified the exact contents of that theory. We do feel that someday we must actually elaborate this theory in some detail. To do so, however, would involve doing a serious amount of time consuming research and we would feel obliged to do this research in a rigorous, neutral, and comprehensive manner. In the meanwhile we thought we would publish our results now

This is a model of scholarship that belongs in the Bizzaro world of Superman comics. Although the amount of deeply researched and intellectually sophisticated legal scholarship continues to grow and vastly out numbers this type of Bizzaro originalist scholarship, the legal academy is clearly in crisis and Rappaport’s post is a symptom. Originalism has become a vast scholarly echo chamber. Originalists cite each other’s work as authority, invite each other to conferences largely dominated by other originalists, publish each other’s papers in their own student edited journals without peer review, and then blog about the paradigm shifting quality of their own work and that of their friends! I am sorry if my posts have seemed unduly harsh or not collegial, but the system is broken and it will never be fixed unless we acknowledge that “something is rotten in the state of Denmark.”

Comments

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To the extent this accurately describes a group of self-described originalist scholars -- something that you haven't established, but let's assume it's true for the sake of argument -- doesn't it also describe all the other first-principles schools of constitutional theory in the academy? How is the scholarly debate among originalists different along these lines from the scholarly debate among adherents of other constitutional theories? Or is your idea that there is something about originalism that requires a more harsh assessment, or a higher standard, as compared to the other theories?

As an aside, I suspect that the personal attacks in your posts and your extremely dismissive tone don't do your arguments any favor: They make it seem like you have a personal problem with a few originalists, rather than a principled argument against originalism. Maybe that's not the case, but I believe that's the impression I think you're leaving.

Saul Cornell's posts on Originalism during his guest stint at Faculty Lounge are so over the top that perhaps they make this point on their own. But in case it needs to be said: it's not effective to paint other scholars as cartoonish with posts that are themselves cartoonish. Cornell has made important scholarly contributions in the past. He threatens his own future readership with blogging that brings more heat than light to the question of the role of history in constitutional interpretation. We don't like it when conservatives mischaracterize scholarship for the purpose of constructing an argument. And we don't like it when liberals do that, too.

I really cannot add much more than that which has been written above, but I want chime in again just because this post is, again, just. too. much. Everyone reading this should understand that I (and other historians who are originalists and are generally more "conservative" than the median ASLH member) worry tremendously about bad originalist libertarian (neo-Lochnerite) judicial activism. I have had those conversations, with the originalists/conservatives, not someone like Mary Dudziak (who is obviously neither) many times both at ASLH physically, and meeting with them in other parts of the U.S.A. Here I can only speak for myself, and I cannot say I have read the briefs, but just on the current issue of what will happen with the Obama Affordable Care Act in the Supreme Court in coming months, I for one hope to God the Court rules it constitutional. I can see no good historical reason to deny the Congress the power to enact it under Section 8 of Article I, and people pushing the suit like Virginia AG Ken Cuccinelli, frighten me, and make me sad, whenever they start talking about the history of "the Founding" and “the Revolution.” Ironically, pursuant to being Bob's student, I became a Virginian for two years of my life, and voted in Arlington for Mr. Cuccinelli in Nov. 2009. I now deeply regret that vote, and would never vote for Cuccinelli again because of his repeated use of history lite during his term in office. (Btw, none of this should imply to anyone reading that *as a policy matter* I do not loathe the Affordable Care Act; indeed my personal view of it is that it is an almost evil law.)

So again, with that kind of preface to what I will say now, I think I have shown that I am not angered by Prof. Cornell's posts here for partisan reasons, and much of what he points to DOES exist. The Federalist Society is too darn libertarian, and its membership is too willing to use bad originalism to achieve libertarian results (again, though, since TFS is a group of tens of thousands of attorneys/legal scholars, one should not paint with too broad of a brush, I go to TFS events in New York all the time, I am going to the one with Julian Ku and John Yoo in New York next week, again, even if I will be depressed by it, to see what is happening in TFS world if for no other reason; many Federalists themselves think other Federalists are too libertarian-judicially activist, I have personal knowledge of that fact).

But again, in line with what Prof. Kerr wrote above, does anyone think similar things are not happening at American Constitution Society meetings? If Ronald Dworkin was repeatedly saying something about history that was bubcus (it’s happened before!), and he did it in speech/talk after speech/talk, does anyone think that ACS chapter heads would be *less* willing to invite him to law schools to speak? Everyone who talks to ACS is Martin Flaherty, but everyone who talks to TFS is Richard Epstein? Is that what Prof. Cornell believes? Again, who are we kidding here? As Flaherty's work shows ALL SIDES in American law schools’ debates LOVE to use history lite when it helps them, and hope no professional historian will call them on it. When it helps the left, it is harder for a Flaherty or a Kaz to call them on it, for reasons of friendship, bias, of just being human, etc. When it helps the right, all those same temptations apply to someone like Bob, or (again, MUCH further down the ranks) me. The first step to beating those temptations back is admitting that both sides do this stuff, a lot. Law schools need more, many more, legal historians, and no I am not just saying that because I am on the market. And the legal historians have to actively work to make themselves less partisan. Prof. Cornell is clearly doing the opposite here: he is writing things that if young, left-of-center historians took them seriously, they wouldn't look out for their own biases at all. They would think that "only THOSE PEOPLE at THAT BLASTED FEDERALIST SOCIETY, they are the ones who have to worry about creating works of history lite!" We don't need that. And to be frank, even though I am no liberal, I will give the free advice and say you who are left-of-center don't need that either. My proof? Again, I hope to God that the (mostly) Republican AG's of the U.S. fail to kill the Affordable Care Act in the Supreme Court. I couldn't say that today had not Flaherty put me on a certain path ten years ago. He was able to do that because...I *trusted* him. I cannot imagine, given what I have read from Prof. Cornell in the last week, had he been an adjunct professor from the History Department in the Bronx teaching legal history at the law school, and had I taken my first legal history class under *him*, and not under Martin Flaherty and Bill Treanor, I cannot imagine putting the same trust in Prof. Cornell, and I probably would have never decided to become a legal historian. Then, I might be just one more conservative lawyer today who believes that the Affordable Care Act is unconstitutional. I would assume most liberals reading like the fact that I turned out the other way.

Last, I'll just make final rounds. Obviously Prof. Kerr is right, *all* stripes of constitutional theorists are incestuous sometimes, exceedingly worried about what only people in their branch of constitutional/moral theory think. Sometimes Natural Lawyers get that way. Sometimes Rawlsians get that way. Etc. This isn't even, per se, bad. It is a matter worthy of scholarly discussion whether the first principles of a theory are correct, but it is also a matter worthy of scholarly discussion, once we assume or conclude that the *first* principles are correct, to debate topics that are, shall we say, more a posteriori, and *within* the borders of the constitutional theory in question, as opposed to being outside or between those borders. There is nothing, per se, wrong with two originalists debating what is the best method of originalism, both assuming that originalism itself is correct. It is only bad if that happens in a vacuum without any regard for historical knowledge. Again, Cornell can prove that *that* happens a lot in this world. He cannot prove that is all that happens with originalism, nor can he prove that it happens with originalism so much more than the other constitutional theories that it somehow proves that originalism, and originalism alone, is the black sheep of the law schools. But more importantly, I would point out that it is really too much for Prof. Cornell to harp on originalists and "their own student edited journals without peer review." Does he ever even read *this* blog? He refers here to The Federalist Society-affiliated (or inspired) law journals at Harvard, Georgetown, Michigan, NYU, etc., like the Harvard Journal of Law and Public Policy. Yes, those journals are edited by law students and have no peer review (that I know of, I know a few journals in America are starting with some peer review in just the last year-or-so, um, Stanford comes to mind?, so anyway, if, say, the HJLPP just started peer review, my apologies in advance). But nearly all law journals are run in exactly the same way. The law students editing them tend to be green, but they also tend to be the better students in the class (at least if we look to grades and the writing competition only). Peer review would add something, but it would also cost time and money, and peer review is not an answer to everything. I could go on, but again, this debate has been hashed out on *this site* more times than I can count. The main point is that nearly all major legal historians, especially the ones teaching in law schools, publish in "student edited journals without peer review." Martin Flaherty's "History 'Lite' in Modern American Constitutionalism" was published in a "student edited journal without peer review"! I mean, again, who are we kidding here?

I am, frankly, amazed that Saul Cornell would have the nerve to make these sorts of complaints. Isn't this the same Saul Cornell who, as head of the gun control movement's counterpart to the Tobacco Institute, used to *buy whole issues of law reviews*, so that special issues on gun control with only one side represented could be published?

Brett Bellmore appears to spend a lot of time posting to various law blogs, but he does not appear to spend much time doing any fact checking. The conferences hosted by my Second Amendment Research Center at OSU included scholars from multiple disciplines and perspectives. I did try to seek out new work rather than simply round up the usual suspects. Among the individual rights oriented scholars who participated at these events were the following persons: Raymond Diamond, James Jacobs, Sanford Levinson, and Brannon Denning. Since I had nothing to do with the publication process, I am not sure why some of these scholars did not end up publishing articles. National Review did an article on this which you might want to read. Also, I wonder what you think of the NRA paying David Hardy $15,000 to write a critical review of my book for a law review. I think that may be the most expensive book review in recent history. What do you think?